Jurisprudence

Dear Donald. Danger! Love, Jeff and John.

The well-timed letter that miraculously appeared to justify travel ban 2.0.

Homeland Security Secretary John Kelly, Secretary of State Rex Tillerson and Attorney General Jeff Sessions,
Homeland Security Secretary John Kelly, Secretary of State Rex Tillerson, and Attorney General Jeff Sessions deliver remarks in Washington, March 6.

Kevin Lamarque/Reuters

Last week President Trump signed his second take at a comprehensive executive order that will severely limit immigrants and refugees traveling to the United States from six majority-Muslim countries. This was done out of the glare of cameras, with no advance copies of the order, and announced at a press conference emceed by Rex Tillerson, John Kelly, and Jeff Sessions at which they took no questions but waxed enthusiastic about the reboot. The three amigos had to show that the new ban was an improvement on the order that had been stomped to its constitutional demise by one reviewing court after another. They were tasked with creating a better, more airtight pretext for the dressed up “Muslim ban” Trump had promised throughout his campaign.

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It was a heavy lift. First, Sessions, Kelly, and Tillerson had to prove the travel ban is necessary to protect the United States of America. Most of the courts that had assessed the original ban were never persuaded that the order would make anyone in the U.S. safer from terrorism. One judge after another had noted, as Judge James Robart in Seattle did in imposing his original nationwide temporary restraining order, that no American has been killed in the U.S. at the hands of anyone from the original seven countries (Iran, Iraq, Libya, Somalia, Syria, Sudan, and Yemen) since Sept. 11, 2001. And the judges weren’t alone: In an internal Department of Homeland Security report leaked in February, analysts affirmed that citizens from the six blacklisted countries (Iraq has been dropped) present no greater terrorism threat to the United States than those from other countries. A second leaked DHS internal document concluded that most individuals connected to terrorist plots in the U.S. arrive as children (like the “Christmas tree bomber” cited in the order itself) and become radicalized only years later. These future radical behaviors cannot be vetted years in advance at the border, DHS concluded.

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Then there is the question of whether this is a racist ban on Muslims or something less abhorrent. Throughout his campaign, of course, Trump promised a Muslim ban and even bragged that he could get it done by calling it a Muslim territory ban. In July, for instance, when he was asked by NBC’s Chuck Todd if he was still proposing to impose an unconstitutional Muslim ban, Trump winkingly replied that “you can’t call it Muslim,” but you can achieve the same outcomes if, as Trump put it, “I’m looking now at territories.” Rudy Giuliani has since confirmed that this was the plan.

Finally, there are the repeated claims that the radical Islamic terrorists “pouring in over the border” present such an imminent security emergency that something, anything, must be done right now. But those claims were belied by reports that the White House had decided to hold off the announcement of the desperately needed travel ban 2.0 for a few days because Trump wanted to bask in the glory of his speech to Congress in February. This despite Trump’s claims that the new travel ban had to be signed immediately because even a week’s notice would have allowed people to “pour in before the toughness goes on.”

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It’s a problem, creating exigent, imminent danger out of nothing. And it’s not that easy to fool the courts into believing that this time the order really is serving some legitimate national security purpose, instead of enacting into law anti-Muslim hate and animus. But presto: There was the Letter. Nearly unnoticed amid the flourish of the new executive order and the very important announcement by Tillerson, Kelly, and Sessions was a letter submitted last Monday, March 6, to the White House and signed by Jefferson B. Sessions III and John F. Kelly, letting the president know that, well, things are really, really bad out there and it would be awesome if Trump could—we don’t know—sign an executive order or something?

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The letter didn’t get much press attention, but it will be Exhibit A at the upcoming litigation around the second order. (New York Attorney General Eric Schneiderman has just filed a third lawsuit challenging the ban.) In the letter, Kelly and Sessions explain with great seriousness of purpose that “We are concerned about weaknesses in our immigration system that pose a risk to our Nation’s security.” Thus, they implore, “We therefore urge you to take measures—pursuant to your inherent authority under the Constitution and as authorized by Congress—to diminish those risks by directing a temporary pause in entry from these countries.” Repeating the scary-sounding but opaque claims lifted from the revised order itself (convenient!), Sessions and Kelly warn that “more than 300 persons who came to the United States as refugees are under FBI investigation for potential terrorism- related activities.” They contend that these six nations are targeted because these are the countries “that are unable or unwilling to provide the United States with adequate information about their nationals.” They add that they are targeting “individuals from nations that have been designated as ‘state sponsors of terrorism,’ and with which we have no significant diplomatic presence.”

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They also point out that all the time and energy DHS and the Department of Justice spend investigating and prosecuting foreign alleged terrorists “places unacceptable stress on our law enforcement resources, which could be better spent on other efforts to weaken those terrorist organizations, protect the homeland, and safeguard our national security.”

Oh my God. It really is an emergency! And weirdly, the letter announcing this fact is dated the same exact day as the executive order! Pretext is not for the faint of heart.

“Therefore,” conclude Sessions and Kelly, soberly yet frighteningly, “we believe that it is imperative that we have a temporary pause on the entry of nationals from certain countries to allow this review to take place—a temporary pause that will immediately diminish the risk we face from application of our current vetting and screening programs for individuals seeking entry to the United States from these countries.”

When judges in Hawaii and Seattle and New York ask Justice Department lawyers to explain why this demonstrably transparent try at Muslim ban 2.0 is truly making the U.S. any safer, they will be advised by that there is an Islamic terror crisis afoot. This time, they have a letter to prove it.

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